Judicial candidates lose incumbency designation challenge

Just how important is the constitutionally and statutorily required incumbency designation on Michigan judicial ballots?

Consider this: Bill Ballenger, Lansing political pundit extraordinaire, and editor and publisher of Inside Michigan Politics, has told me on several occasions that in Michigan, 95 percent of all incumbent judges in the last 20 years have been re-elected.

That gives incumbent judges almost a virtual lock in terms of job security (notable exception: former Michigan Supreme Court Chief Justice Clifford Taylor’s loss to Diane Hathaway in the 2008 election).

Mark Janer and Steven J. Jacobs, two candidates for the 74th District Court, know the incumbency designation is a powerful election tool. That’s why they went to court recently to argue that 74th District Court Judge Jennifer Cass Barnes, a very recent (June 1) Granholm appointee, shouldn’t be listed as such on the August primary ballot.

Former 74th District Court Judge Scott Newcombe decided to resign earlier this year, effective May 31. Janer, Jacobs and Barnes all filed timely petitions in April to be electoral candidates for the open seat, which was designated as a non-incumbent position.

On April 23, Governor Jennifer Granholm appointed Barnes to fill the remainder of Newcombe’s term – which expired at the end of the year. Barnes took office June 1.

Janer and Barnes sued to prevent Barnes from receiving the incumbency designation. The argument presented to Bay County Circuit Court Judge Frederick L. Borchard, as recounted by the Michigan Court of Appeals in Janer, et al. v. Barnes, et al.:

[B]ecause Barnes filed nominating petitions to access the ballot as a non-incumbent, and because her appointment occurred after the deadline for incumbent judges to access the ballot, she is not entitled to the incumbent designation on the ballot.

Borchard dismissed the complaint, which sought a declaratory judgment, mandamus, and injunctive relief.

They fared no better in the COA. A per curiam panel consisting of judges Peter D. O’Connell, Donald S. Owens and Stephen L. Borrello ruled that

Const 1963, art 6, § 24 and MCL 168.467c(2) are unqualified mandates. They do not impose a time period in which an incumbent candidate must act in order to qualify for the incumbent designation.

Because the language is clear and unambiguous, judicial interpretation is not permitted, and the provisions must be enforced as written. …

The only requirement for the incumbency designation on the ballot is the incumbent status of the judge, which it is undisputed that Barnes now has attained. Accordingly, she is entitled to the incumbency designation.

And an almost certain win in August.

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Dems target Young’s environmental record in MSC campaign

Michigan Supreme Court Justice Robert P. Young Jr., up for re-election to the high court this fall, favors oil and gas companies over the environment, a Michigan Democratic Party video suggests.

“Misinformation and outright lies,” was the Young campaign’s immediate response, according to an Associated Press report.

In a press statement accompanying the video’s release yesterday, party chair Mark Brewer said:

Bob Young is nothing more than a puppet for the oil and gas industry.

His disastrous rulings throughout his career show his priorities lie with Big Oil, not with Michigan and its residents. We need a Supreme Court Justice who will stand up to Big Oil and protect Michigan and that’s not Bob Young.

In her AP article, Kathy Barks Hoffman does a good job of evaluating the Democrats’ case-law-based arguments against Young.

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Granholm fills two judicial vacancies

Governor Jennifer Granholm has filled two judicial vacancies.

Jennifer Cass Barnes of Bay City has been named to the 74th District Court. Barnes replaces retiring Judge Scott Newcombe.

Barnes is a former legislative director for State Sen. Jim Barcia (D-Bay City), and the former enforcement attorney for Michigan Works!. She was also director for Bay County Friend of the Court and a public defender. Her term expires Jan. 1, 2011.

Granholm has also appointed Thomas K. Byerley of Dimondale to the Eaton County Probate Court.

Byerley’s appointment fills a vacancy created by the death of Judge Michael Skinner earlier this year.

Byerley was the State Bar of Michigan’s director of professional standards before moving to private practice with White, Schneider, Young & Chiodini . He’s a former manager of the Michigan Judicial Institute and has taught at Notre Dame and Southwestern Michigan College. His term expires Jan. 1, 2011.

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6th Circuit: Fieger’s MSC recusal suit moot

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

Fieger still has some big cases swirling around on appeal. See, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question.”

Campaign season is just around the corner.

The next move, if anybody makes one, should be interesting.

MSC to consider COA’s conflict ruling in Waterstone case

What a mess.

Back in 2005, when Mary Waterstone was still a Wayne County Circuit Court judge, the Wayne County prosecutor’s office charged Alexander Aceval with narcotics trafficking and took the matter to trial.

Waterstone presided. Karen Plants handled the prosecution. The jury deadlocked. A new trial was scheduled for June 1, 2006.

But before his retrial, Aceval came forward with an amazing tale. At his first trial, he claimed, two cops took the stand and lied to protect a confidential informant’s identity. Aceval alleged that the informant had lied as well.

Okay, here’s the really amazing part: Aceval said Plants knew about the perjury, had two ex parte hearings with Waterstone to tell her all about it, Waterstone sealed the hearing transcripts, didn’t say a word to Aceval and still let the case go to the jury.

Aceval said all of this meant there should be no retrial, especially not with Waterstone presiding and Plants prosecuting.

Waterstone disqualified herself. The retrial proceeded as scheduled with a new judge, who unsealed the ex parte hearing transcripts. The transcipts revealed that the perjury was apparently tolerated in a woefully misguided, and ultimately unsuccessful attempt, to keep the informant’s identity confidential.

The plot thickened with allegations that Aceval, before the retrial, convinced one of the prosecution’s witnesses to do some lying of his own on Aceval’s behalf.

The witness said that was indeed what happened and purged his testimony. The retrial was cut short when Aceval pleaded guilty to possession with intent to distribute more than 1,000 grams of cocaine.

Aceval repeated his allegations about Waterstone, Plants, the informant and cops in a federal-court suit filed on Nov. 30, 2006. Waterstone, naturally, was a named defendant. Because she was a judge at the time, the state attorney general’s office stepped up to defend her. On March 17, 2008, the federal court dismissed Aceval’s case, which he had filed pro per while in prison, apparently because he didn’t give the court his address.

Meanwhile, Wayne County Prosecutor Kym Worthy had a problem on her hands. Worthy decided that due to a clear conflict of interest, she could not initiate any criminal charges relating to the perjury. She asked the Michigan Prosecuting Attorney’s Coordinating Council to assign a special prosecutor. The council was turned down by prosecutors from four different counties.

Attorney General Mike Cox stepped up to the plate and took the case.

While the AG’s office was working up its investigation of Waterstone, the Court of Appeals was considering Aceval’s appeal. No doubt about it, wrote Judge Kirsten Frank Kelly on Feb. 5, 2009:

defendant was denied due process because of the trial court’s and the prosecutor’s misconduct. However, here we stress that defendant was not convicted following his first trial; rather, the trial court declared a mistrial because of a hung jury. This was clearly the appropriate remedy. Although both the trial court’s and the prosecutor’s conduct was plainly reprehensible, the blameworthiness of either is not the critical factor, because the primary inquiry is the misconduct’s effect on the trial. …

In this case, the complained-of misconduct did not prejudice defendant because he received the remedy that was due him: a new trial.

For these reasons, defendant’s constitutional due process claim must fail. …


See, People v. Aceval. (majority opinion) (concurring opinion)

The AG’s office issued felony charges against Waterstone the very next month. Waterstone responded that Cox’s office defended her when Aceval sued in federal court and now wanted to prosecute her on basically the same facts. Waterstone argued that a conflict of interest prevented the AG from prosecuting her.

Up at the Michigan Supreme Court, Aceval was pressing his argument that his first trial had been too tainted to even permit a second trial, the one that ultimately resulted in his guilty plea. The MSC split 3-3 on taking the case, which meant the COA’s affirmance of Aceval’s conviction was left intact.

The 3-3 split resulted because Justice Maura Corrigan had agreed to be a character witness for Waterstone if her case ever comes to trial. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case

Last month, the COA, in People v. Waterstone, agreed with the former judge’s argument that Cox’s office had no business being in the case.

We conclude that the Attorney General violated the MRPC in undertaking the prosecution of defendant regarding misconduct in office in conjunction with the Aceval trial, where the Attorney General formerly defended her against Aceval’s federal claims, without first obtaining her consent. [My emphasis, not the COA's]

To remedy the conflict of interest, we direct that the Attorney General withdraw from the prosecution of this case.

As you might have expected, the AG sought leave to appeal.

Last week, the MSC ordered Waterstone and the AG’s office to appear before the Court and argue whether leave should be granted. Corrigan again stated she wasn’t participating because she might be called to testify for Waterstone.

If the MSC ultimately rules that there is a conflict, it’s back to square one. The hunt for a prosecutor will begin anew, and, recall, they’re not exactly lining up at the gates for a crack at this one.

What a mess, and there’s no end in sight.

Judicial disqualification: To participate or not participate? That is the question

The high drama of judicial disqualification surrounding Pellegrino v. AMPCO Parking (majority opinion) (concurring/dissenting opinion) reached the stratosphere yesterday.

In an after-hours order (it hit my e-mail inbox at 6:02 p.m.), Justices Maura Corrigan and Robert Young explained why they refused to participate in disqualification proceedings under newly adopted MCR 2.003. (March 16, 2010 amendments here)

At the core of their statements: we decline to participate because we think MCR 2.003 is unconstitutional.

Chief Justice Marilyn Kelly and Justice Diane Hathaway explained why they thought Corrigan and Young were dead wrong.

At the core of their statements: Like it or not, MCR 2.003 is constitutional until this court or a higher court says it isn’t. In the meantime, you have a duty to participate.

Quick context: Plaintiff’s attorney, Geoffrey Fieger, represents Pellegrino. At stake in the Michigan Supreme Court is a $15 million verdict and a defense claim that the trial judge did too much tinkering to achieve a racially balanced jury. See, Michigan Lawyers Weekly, “Court rule, case law in conflict: MSC to determine if trial judge tipped the scale, based on race.”

Fieger sought disqualification of Young, Corrigan and Justice Stephen Markman, claiming bias against him and his firm, based on past politcal campaign speech. See, The Michigan Lawyer, “Disqualification motion denied.”

In a Jan. 28, 2010 order, Kelly, Markman and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied the motion. Kelly, Cavanagh, Weaver and Hathaway submitted concurring statements within the body of the order. Markman filed a separate statement explaining his decision.

Corrigan and Young both stated they were “not participating” and would provide a statement later.

Those statements were in yesterday’s order, which was accompanied by extensive attachments.

From Corrigan:

I do not participate in the orders issued under the new version of MCR 2.003 for the reasons stated in my November 25, 2009, dissent from the rule’s promulgation. Contrary to Chief Justice Kelly’s assertions, Justice Young and I have exhaustively detailed our reasons for concluding that the rule is unconstitutional. See the order amending MCR 2.003, 485 Mich ___ (entered November 25, 2009, amended December 3, 2009, ADM 2009-4) (Corrigan, J., dissenting).

We also explain here that the duty to sit clearly cannot require official acts that would violate our oaths to uphold the federal and Michigan constitutions. Const 1963, art 11, § 1.

Further, I object to the majority’s application of the new rule to this case in light of its decision to adjourn the discussion of proposed changes to the rule previously scheduled for this Court’s December 2009 and January 2010 public administrative hearings.

As Justice Young observes, the proposed changes are intended to bring the rule into compliance with minimal due process and First Amendment requirements, yet the majority here applies the rule in its current form before even discussing the proposals.

From Young:

I do not participate in the order or the Court’s decision-making under the new rule for the reasons stated in my November 25, 2009 dissent from the rule’s promulgation.

As I have previously stated, MCR 2.003 as amended is unconstitutional. That the majority has refused to consider the significant constitutional issues arising under the amended rule that I have raised is especially troubling.

In particular, on November 19, 2009, before the order amending MCR 2.003 entered, I circulated to the Court a series of substantive amendments that addressed the basic due process and First Amendment problems with the rule the majority nevertheless adopted on November 25, 2009.

In the more than four months since I proposed them, not only have the members of the majority failed to provide me with any written or oral feedback on these amendments, they have also refused to consider these amendments at our December 10, 2009, and January 27, 2010, public administrative conferences, even though they were scheduled to be considered.

That the majority is willing to review their fellow justices’ recusal decisions under the new rule in the face of its serious constitutional problems indicates an appalling indifference to the role of this Court in enforcing the rule of law. …

[M]y decision not to participate does not violate the duty to sit because deciding whether a fellow justice must be disqualified from hearing a particular case under the current court rule is inconsistent with my judicial duty to uphold the due process requirements of the United States Constitution.

From Kelly

Justices Corrigan and Young’s reason for not participating, as they have stated here and in their dissenting statements in ADM 2009-4, is that amended MCR 2.003 is unconstitutional.

Surely Justices Corrigan and Young are entitled to their personal view on this subject. But neither this Court nor any other has adopted that view. Hence, amended MCR 2.003 is clothed in a presumption of constitutionality.

Moreover, a justice has an affirmative duty to participate to the extent possible in matters that are brought before this Court. As former Chief Justice Taylor and Justice Markman stated in a 2006 Court decision, “Particularly on the supreme court of a state, a body in which judges who recuse themselves cannot be replaced, it is necessary that judges participate in cases in which recusal is not required.” This doctrine is known as the “duty to sit.”

Under that duty, there is an obligation for a justice to remain on any case unless disqualified from doing so. Indeed, the United States Court of Appeals for the Second Circuit has opined that “where the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited.”

Therefore, one wonders by what authority Justices Corrigan and Young refuse to acknowledge the constitutional status of the rule at present and, given their duty to sit, refuse to vote on this motion. …

Justices Corrigan’s and Young’s decisions not to participate set a disturbing precedent that one cannot reasonably believe they intend to create.

Their decisions are analogous to a justice refusing to participate in a matter governed by precedent from which that justice dissented. Essentially, Justices Corrigan and Young now state that, because they do not agree with MCR 2.003, as amended, they will refuse to follow it.

From Hathaway:
The new rule is not unconstitutional or inappropriate merely because a minority of justices on this Court disagree with incorporating an appearance of impropriety standard within the rule.

As recognized by the United States Supreme Court … the appearance-of-impropriety standard is part of a code that serves to maintain the integrity of our judiciary and the confidence of the public. Caperton recognized that appearances of partiality can rise to such an extreme level that the due process rights of parties become impaired, at which point disqualification is mandated by the United States Constitution.

But Caperton also recognized that states are free to impose more rigorous standards than due process requires, including the appearance-of-impropriety standard. Accordingly, it is constitutional to expressly include this standard within the rule.

MSC amends judicial disqualification rule, proposes broader criminal discovery

In orders released late yesterday, the Michigan Supreme Court:

  • amended MCR 2.003 of the Michigan Court Rules. ADM File No. 2009-04. The amendment establishes time requirements for filing motions for disqualification in the trial courts, Court of Appeals, and the Supreme Court.
  • solicited comments on a proposed amendment of MCR 6.201. ADM File No. 2008-38. The proposed amendment would require prosecutors to provide to defendants any electronic recording made by governmental agencies pertaining to the case known to the prosecutor.
  • expanded the scope of the e-filing pilot project in the Oakland County Circuit Court’s Family Division. Administrative Order No. 2010-3.
  • appointed Marco S. Menezes as chief judge of the Mecosta/Osceola Probate District Court. ADM File No. 2010-01.
  • adopted a concurrent jurisdiction plan for the 12th Circuit Court and the Baraga County Probate Court. Administrative Order No. 2010-2.

The curious case of Hon. Benjamin H. Logan

A deal to resolve misconduct charges filed by the Judicial Tenure Commission against 61st District Court Judge Benjamin H. Logan may be on the rocks.

Last fall, the JTC’s formal complaint alleged that Logan’s intervention to grant bond to Kent County Commissioner James Vaughn gave the “appearance of impropriety.” See, The Michigan Lawyer: Special master appointed in Grand Rapids judicial misconduct case

Vaughn had been arrested for domestic violence.

The complaint alleged that Logan intervened after a telephone call with another commissioner, Paul Mayhue, who visited Vaughn in jail. Logan initially denied that any phone conversations took place. He eventually conceded in a JTC settlement agreement that he and Mayhue spoke for 15 minutes on the day Vaughn was arrested.

The JTC recommended a public censure for Logan and sent the file to the Michigan Supreme Court for approval.

Wait a minute, something doesn’t seem to be adding up, we’re curious, a little more “explication,” please, said Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young, Jr., Stephen J. Markman and Diane M. Hathaway.

We DIRECT the Judicial Tenure Commission to file a supplemental report within 56 days of the date of this order, explaining:

(1) whether it has determined that the respondent did not lie to the Commission, despite the allegations in Count II of the complaint; and

(2) if the respondent did not lie to the JTC, then how does the respondent explain his admitted 15-minute phone call received from Mayhue in light of his multiple denials of having any conversations with Mayhue on the date in question? See page 4 of the settlement agreement (admitting that the 2:08 p.m. phone call from Mayhue to the respondent on 6/17/08 lasted approximately 15 minutes), pages 5-6 of the complaint (alleging that the respondent denied having any conversations with Mayhue on that date), and page 2 of the respondent’s answer (continuing to deny that he had any conversation with Mayhue on that date).

One possible reading of the tea leaves: if a judge lies to the JTC, something more than a public slap on the wrist is in order.

Chief Justice Marilyn Kelly and Justice Michael F. Cavanagh “would adopt the recommendation of the Judicial Tenure Commission.”

In their opinions

“The trial court properly concluded that plaintiff failed to plead facts sufficient to establish mutuality of agreement.”

Michigan Court of Appeals Judges E. Thomas Fitzgerald, Mark J. Cavanagh and Alton T. Davis, exercising remarkable judicial restraint in Sharp v. Dep’t of Corrections, when affirming dismissal of a pro per prisoner’s $19 billion wrongful-imprisonment claim.

Archie Sharp, who’s serving a 30- to 110-year term, sent a letter to his warden, Kurt Jones. Sharp’s missive, styled as a “Private Agreement,” demanded $1 million for every day that he was being kept in the pen.

By its terms, the document was “self-executing” and would become effective if [Jones] allowed a five-day period to expire without responding.

To no one’s surprise, Jones didn’t answer Sharp. So, Sharp sued in the Court of Claims, alleging that Jones was liable “to him under the terms of the ‘Private Agreement,’ as either an express contract or an account stated.”

A claim like Sharp’s can be fertile ground for clever appellate judicial zingers.

But Judges Fitzgerald, Cavanagh and Davis resisted the temptation placed before them. Instead, they patiently explained that the “agreement” lacked mutuality, did not fall under the UCC and did not present a claim for account stated.

And that, folks, is a fine example of a class judicial act.

Ingham Circuit Judge Giddings reflects on retirement

Judge James Giddings, of the Ingham County Circuit Court, is retiring because he’s bumping against the state constitutional age-70 roadblock.

He says it might be time to rethink the age limit for holding judicial office.

In a conversation with Kyle Melinn of the Lansing-based CityPulse, Giddings said he’s been on the bench almost 40 years.

Giddings said he still has enough in him to keep going but isn’t sure he would have taken another ride on the electoral rollercoaster even without the constitutional barrier.

Realistically, being 70 years old today isn’t like being 70 years old back in the 1960s, when the latest draft of the Constitution was written, Giddings noted. People are living longer, more healthy lives. At age 70, Giddings said he could continue doing the job. Maybe at age 75, things would be different, he said. He’ll never know.

But if voters this November vote “yes” on Proposal 1 and call for a new constitutional convention to re-write Michigan’s guiding document, Giddings would suggest that delegates lift the current cap to more accurately reflect the changing times, be it 75 or 80.

Giddings, who frequently clashed with former governor John Engler, addressed Engler’s frequent claims that Giddings was a judicial activist.

“If anyone examined the rulings, they’d know I followed the law,” Giddings said. “Give him credit, John Engler was effective. But he used things I ruled on to give him stature with some constituencies.”

Engler claimed at the time that Giddings was a “judicial activist.” Now, Giddings accurately pointed out, Engler’s own judicial appointees, especially at the Supreme Court level, are being painted with the same brush.